Alabama Midland Railway Co. v. Johnson , 123 Ala. 197 ( 1898 )

TYSON, J.

It Avas the duty of the defendant’s servants in charge of the train Avlien it stopped at Ashford for the purpose of discharging and removing passengers, to-have kept it stationary for a length of time Avhich Avas reasonably sufficient to enable all passengers to get off and on by the exercise of due care and diligence.—Montgomery & Eufaula Railroad Co. v. Stewart, 91 Ala. 421; Birmingham Union Railway Co. v. Smith, 90 Ala. 60. As to AA’hether the defendant’s train from AAdiicli the plaintiff Avas throAvn by a sudden jerk in its starting or fell from the platform after the train began to moAre, Avitliout a jerk but smoothly, and as to how long it remained stationary, Avere disputed facts in the,case. If the Avitnesses for plaintiff are to be belieAred, the stop AAras not sufficiently long by the use of care and diligence for him to Inure alighted. If the eAddence introduced by the defendant is to be believed, the plaintiff by stopping on the platform to engage in a conversation, after the train had become stationary for the purposes of having’ passengers alight, consumed the 'time'AAdiicli Avas sufficient for him to have gotten off. Passengers cannot be permitted to delay trains, after being afforded a sufficient time to alight, to suit their oavh convenience or caprices, and then complain of injury resulting to their persons by falling in attempting to do so after it begins to move. They are bound to be diligent themselves after the train stops at the station in getting off and on it. IIoAvever, in the case under consideration, as Ave have said, it Avas a question of fact for the jury to determine whether the train remained stationary long enough, to get off, and whether-in the-act óf getting off he was thrown from the steps of the car by a sudden jerk of the train in starting. There was no plea of contributory negligence filed by the defendant, but the cause was tried solely upon the plea of not guilty, and, therefore, the want of care or ¿Lili-' gence exercised by the plaintiff was not an issue in the cause.. If the defendant had desired to raise this question it should have done so by proper plea, and it cannot, for the first time, insist upon it in this court.—Kansas City, Memphis & Birmingham R. R. Co. v. Crocker, 95 Ala. 427; McDonald v. Montgomery Street Railway, 110 Ala. 161; East Tenn. Va. & Ga. R’y Co. v. Holmes, 97 Ala. 322; S. & M. R. R. Co. v. Shearer, 58 Ala. 672. There was no error in refusing the affirmative charge to the defendant.

The remaining assignment of error relates to the overruling by the court of the defendant’s motion for a new trial. There were eight grounds alleged in this motion, but only two of them are insisted.upon in the brief of appellant’s counsel; and we, therefore, must refuse to consider the other six. Doubtless, “it would have been tedious for them to pursue the discussion of these grounds, and we deem it unneccessary to go further than they did and decline to undertake what they seem to think useless.”—Williams v. Spragins, Buck & Co., 102 Ala. 424.

The affidavit of McIntyre offered in support of the ground of the motion based upon newly discovered evidence, as to the length of time the train stopped at Ash-ford, was merely cumulative to the evidence of witnesses Parker, Wood, Wjley, McIntyre (colored), Bruner and Johnson, examined by defendant upon the trial. As to the facts deposed to in his affidavit of how the-plaintiff received Ids injuries, they tended to establish the contributory negligence of the plaintiff in alighting from the moving train after it had gone a distance of ten or fifteen feet. This would not have been competent had it been offered for that purpose upon .the trial under the issue tendered .by the plea of the defendant. This renders it unneccessary to consider the affidavit of the division counsel for the defendant. However vigilant he may have been, and doubtless was, to find out the facts incipient to the occurrence which resulted in the injuries to the plaintiff complained of, and the names of the persons who witnessed it, this cannot affect the rule that governs the courts in passing upon motions for new trials predicated upon newly discovered evidence.—McLeod v. Shelby Manufacturing & Imp. Co., 108 Ala. 81.

The other ground of the motion insisted upon is that the verdict of the jury was contrary to the evidence. After a careful examination of the evidence, and after according all reasonable presumption to the correctness of the verdict and judgment below, we are. not willing to say that the preponderance of the evidence is so decidedly in favor of the defendant as to leave no substantial doubt that the verdict was wrong and unjust. And unless we can so hold, the verdict .and judgment should not he disturbed.—Cobb v. Malone & Collins, 92 Ala. 630; Davis v. Miller, 109 Ala. 589; Terst Sons & Co. v. O'Neal, 108 Ala. 250; Holloway & Gilchrist v. Harper, 108 Ala. 647; Anderson v. English & Webb, 121 Ala. 272.

There was no error in refusing the motion for a new trial. The judgment must he affimed.

Affirmed.